The curious case of Omar al-Bashir, recently ousted President of Sudan, has been a sore point to the International Criminal Court at least, until his ouster from power in April last year. Wanted for a host of crimes cognizable by the ICC, he had eluded arrest warrants, with various states – and the African Union itself – refusing to enforce them, on the ground that as a head of state, he enjoys immunity from suit and process.
Jordan’s failure to do the same gave rise to a case before the ICC Appeals Chamber on that very question, and in May last year, just a month after the Sudanese dictator was removed from power by peaceful protests over corruption charges, the Chamber issued a ruling that effectively removed any claim to immunity by foreign leaders with respect to processes conducted by an international criminal tribunal tribunal such as the ICC. Controversially, the Chamber held that under customary international law, no such immunity may be interposed as an objection as far as international criminal tribunals are concerned.
That conclusion sparked something of an uproar in the international criminal law academia. See here, here, and more recently, here.
The International Law Commission has just weighed in on the question in its Eighth report on immunity of State officials from foreign criminal jurisdiction, submitted by Special Rapporteur Concepción Escobar Hernández. Paras. 25-32 of the Report are apropos.
And the ILC essentially supports the conclusion reached by the ICC Appeals Chamber in the al-Bashir case. As the report puts it, the following summarizes the Chamber’s findings of immunity of foreign officials in relation to international criminal tribunals:
(a) National tribunals and the International Criminal Court are subject to different rules with regard to immunity: while immunity of State officials may be invoked before a foreign criminal court, it cannot be invoked before the Court;
(b) Heads of State enjoy immunity before the national criminal tribunals of a third State, but not before international criminal tribunals.
(c) States parties to the Rome Statute have an obligation to cooperate fully with the International Criminal Court, including by arresting and surrendering persons accused of committing crimes that fall within the jurisdiction of the Court;
(d) The obligation to cooperate is linked to article 27 of the Statute, which creates both vertical effects (jurisdiction of the International Criminal Court) and horizontal effects (jurisdiction of national courts);
(e) In complying with the Court’s request for cooperation, “the requested State Party is not proceeding to arrest the Head of State in order to prosecute him or her before the courts of the requested State Party: it is only lending assistance to the Court in its exercise of the Court’s jurisdiction.
The special rapporteur notes it is the last three paragraphs above that “may have some bearing on the present topic, particularly on the very concept of foreign criminal jurisdiction.”
The Special Rapporteur stresses that indeed her work centers on immunity of foreign officials before national courts, but the Commission may not as well disregard the important work of international criminal tribunals in the fight against impunity, citing the International Court of Justice’s ruling in Arrest Warrant of 11 April 2000 case, which, in her view, “identified such tribunals as an alternative means of avoiding impunity in cases where the criminal courts of a State cannot exercise jurisdiction.”
She continues that “this would allow a case to be referred to an international criminal tribunal as a way of ensuring that the immunity of State officials from foreign criminal jurisdiction is respected and, at the same time, that international criminal responsibility for the commission of certain categories of crimes is clearly established.”
Thus she does not see a conflict in the jurisdiction of foreign courts and international criminal tribunals with respect to foreign officials. Where I sit, I read her as saying that the complementarity principle enshrined in the Rome Statute would be relevant here specifically for states that are parties to the ICC. In the case of states that are not parties to the ICC, there is a general obligation to assist international criminal tribunals fulfill their work, under customary international law (albeit she doesn’t expressly refer to it).
Thus, she recommends a draft Art. 18 in the proposed Articles on immunity of State officials from foreign criminal jurisdiction in this wise: “The present draft articles are without prejudice to the rules governing the functioning of international criminal tribunals.”
Elsewhere, I have written about the relevance of the al-Bashir ICC Chamber ruling in regard to the bloody drug war launched by President Rodrigo Roa Duterte.